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Thursday, 15 December 2016

This blog has covered extensively
the issue of linking and copyright, and reported that - in the aftermath of the
September decision of the Court of Justice of the European Union (CJEU) inGS
Media[Kat-coverage here]- there have been applications of this ruling at the level
of Swedish[here]and
German[hereandhere]courts.

Returning to Sweden, Katfriend Pär Öhman(Bildombudsmannen
AB)[Pär has represented Rebecka Jonsson in a
number of actions brought over unauthorised linking to unlicensed content to
which she owns the copyright]explains
in detail what happened in the Swedish proceedings.

Here's what Pär writes:

"The
bungee jump nightmare

In 2012, Swedish national Rebecka Jonsson filmed her Australian friend’s bungee
jump from the Victoria falls bridge. The 111-metre jump quickly turned into a
nightmare as the bungee cord snapped and Jonsson’s friend fell into crocodile-infested waters. Fighting her way to loosen the bungee cord, the
woman survived by dragging herself to shore.

Jonsson’s friend recovered without any permanent damages and the
two were approached by an Australian TV station that was interested in this
story.

Jonsson agreed to a limited licence for the TV station to show the
video she had made on Australian TV. She never uploaded the film on the
internet and did not give anyone else permission to do so.

When the film waslater made
available online, the Australian TV station confirmed that it only had shown the
film as agreed and had not unlawfully sold third paries any rights over it.

Jonsson has since then acted against alleged infringers worldwide.
All of this has happened prior to and alongside theCJEU case
law regarding linking.

Pre-GS
Media

Even though the Attunda
District Court judgmenton
13 October 2016 (case no FT 11052-15) might be the first national
application ofGS Media[here]was not the first
judgment regarding linking (embedding from YouTube) to Rebecka Jonsson’s
film.

One of many is theAttunda
District Court judgmenton
7 September 2016 (case no FT 10825-15) which happened to be decided the
day before GS Media. Based on the circumstance that the film had never
been uploaded on YouTube with Rebecka Jonsson’s consent, the court concluded,
by referring to the CJEU decision inSvensson[Kat-coveragehere],
that the defendant had infringed Jonsson’s copyright by communicating the film
to a 'new public'.

The Attunda District Court

Post-GS
Media

The assessment slightly changed after theGS Mediadecision.

Instead of just looking at
whether the protected work had been uploaded without the copyright owner's
consent, the court also considered whether the defendant had provided the link
for profit and, if so, whether the defendant could rebut the presumption of
full knowledge.

The court concluded that the defendant had provided the link for
profit as it was done on a news website. The defendant was not able to rebut
the presumption. The defendant had argued that the film was free of rights as
it had been uploaded on YouTube with the possibility to embed. However, the
defendant was not able to prove that this had been done with the consent of
Jonsson.

Comment

A fundamental principal in Swedish civil procedural law is that a
court is bound by the parties' claims and circumstances.
This means that the parties control what the court can decide on. As neither of
the defendants did argue for the application to their conduct of any copyright
exception or limitation, the Attunda District Court did not and could not apply
any.

Even though the Attunda District Court stated that there is no
Swedish case law regardinglinking,it
should be noted that in fact there is (NJA 2000 s. 292MP3). Following the CJEU decisions inSvenssonandC
More[hereandhere;
both references for a preliminary ruling from Sweden], inC
More[note from Eleonora: the Svensson national
litigation waseventually
settled] the Swedish Supreme Courtfound that the defendanthad
communicated hockey games to the public as the links provided the possibility
to circumvent restrictions, ie paywalls(NJA
2015 s. 1097C More).

If you don't tell me, I can't know

One circumstance that the Attunda District Court did not mention
clearly was that Rebecka Jonsson had sent the defendant cease-and-desist
letters. Despite receiving such warnings, the defendants had maintained the
links.

The big question raised afterGS Mediais of course the one of profit. I do not
necessarily agree that the Attunda District Court’s interpretation is strict.If a company operating a news
website was not considered to do so for profit, then the application ofGS Mediacould imply a notice-and-takedown
regime with limited liability. This would weaken the protection of copyright
online.

In my opinion the presumption of full knowledge is balanced
considering the possibility for the defendant to rebut the presumption.

The presumption of knowledge gives the author the high level of
protection needed online. At the same time, it is possible, even for profit, to
provide links if “the person who posted such a link carries out
the necessary checks” (GS Media, para 51).

This kind of consideration is not totally unfamiliar in Sweden, as
it follows from case law (NJA 1995
s. 164 Stickadtunika) that the alleged infringer has the responsibility to
carry out necessary checks (undersökningsplikt).
However, failing to do so could not necessarily constitute an infringement, but would simply amount
to negligence (which is required for damages).

Comparing the various Attunda District Court’s judgments it is
noticeable howGS Mediahas opened up a possibility for the
defendant to avoid liability by rebutting the presumption.

In none of Rebecka Jonsson’s cases have the defendants, in my
opinion,carried out such necessary checks. The
defendants have in most cases not carried out any checks at all. They have
never been in contact with the YouTube user that had unlawfully uploaded the
film prior to linking. It is most of the time not too difficult to see if a
work is unlawfully uploaded, especially not for news websites that daily work
with fact checking and copyright.

In the future, it will be interesting to see what strategy news
websites take. Will they argue not to have provided the link for profit or try
to rebut the presumption by taking necessary actions before publishing the
relevant link?"

3 comments:

Anonymous
said...

This account seems factually wrong.This attorney states the video would have been licensed JUST to an Australian TV. Why then does the ruling mention licenses granted to agencies specializing in viral content?

It would also be interesting to know why the complainant never tried to have the video removed from Youtube. Paragraph 53 of the GS Media ruling suggests there is a subsidiarity principle, no?

Thank you for your comment. Rebecka Jonsson has since 2012 granted limited licences to other parties. However, none have the right to upload the film on the internet. Jonsson has acted against alleged infringers and at the same time reached out to YouTube. I would say that para 53 gives the author an option to choose who to act against.

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